Do signatures collected on a defunct-voting-district wet-dry petition in 2013 still count after the 2015 legislature changed the election rules?

Plain-English summary

State Representative Bob Johnson asked whether signatures collected under Act 1018 of 2013 (which authorized wet-dry local-option elections in "defunct voting districts") could still be submitted under Act 564 of 2015, which amended several key provisions of the same statute.

Attorney General Leslie Rutledge said no. Act 564 of 2015 amended Ark. Code Ann. § 3-8-602 in several material respects: it removed "manufacture" from the question voters would consider, dropped the off-premises consumption option, and reduced the signature threshold from 38% to 15%. Because Arkansas requires signatories to a petition to see the exact ballot title and text that will appear on the election ballot, signatures collected under the materially different 2013 ballot title and text cannot support holding an election under the 2015 version. The Arkansas Supreme Court enforced this principle in Walmsley v. Martin, where it reversed the Secretary of State's certification of an initiative petition after the ballot title was changed.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What changed between 2013 and 2015

Act 1018 of 2013 added a new subchapter authorizing wet-dry elections in "defunct voting districts," meaning districts that existed when they voted dry, are no longer recognized by the state or county, and are currently in a wet county. The 2013 version of Ark. Code Ann. § 3-8-602:

• Asked voters whether to allow the "manufacture and sale of alcoholic beverages."
• Allowed both off-premises and on-premises consumption.
• Required signatures from 38% of qualified electors in the defunct district.

Act 564 of 2015 amended § 3-8-602 to:

• Ask voters whether to allow the "sale of alcoholic beverages" (deleted "manufacture").
• Drop "off-premises consumption" entirely.
• Limit on-premises consumption to the corporate limits of a city of the first or second class within the defunct district.
• Lower the petition signature requirement from 38% to 15%.

Why the Walmsley rule controls

Petition signatures under § 3-8-602 are governed by the general local-option petition procedures in Ark. Code Ann. § 3-8-201 et seq., which incorporate Ark. Code Ann. § 7-9-109. The latter requires the canvasser to verify that "[a]t all times during the circulation of this signature sheet, an exact copy of the popular name, ballot title, and text was attached to the signature sheet."

In Walmsley v. Martin (2012), the Arkansas Supreme Court considered a challenge to the Secretary of State's certification of an initiative petition where the ballot title had been altered after signatures were collected. The Court held the signatures could not support certification. The opinion explained that the purpose of the attachment rule is "to inform voters of what they are signing before they sign it" and demanded "strict compliance" with the requirement that signatories "receive the exact ballot title that will be certified and printed on the general election ballot." The Court also noted that material changes to the text of the measure (separate from the ballot title) could be an additional basis for finding the petition insufficient (Porter v. McCuen).

Applying Walmsley to the Johnson question, the AG concluded the 2013-collected signatures sat on signature sheets bearing the 2013 ballot title (mentioning "manufactured") and 2013 text (allowing off-premises sales). The 2015 election would have a different ballot title and a materially different operative text. The strict-compliance rule would defeat any attempt to use the old signatures.

Common questions

Did this mean the 2013 signature drive was wasted effort?
For purposes of supporting a 2015-amended election, yes. Sponsors who had collected signatures under the 2013 statute would need to recirculate petitions bearing the new ballot title and text and obtain the new 15% threshold of signatures.

Why does the strict-compliance rule matter so much?
The Arkansas Supreme Court treats the attachment requirement as protecting an informed-consent interest. A signatory committed her name to one version of the proposed measure. Submitting that signature in support of a different measure misrepresents what she actually approved.

The 2015 amendment lowered the signature threshold. Doesn't that benefit the sponsor?
On a fresh signature drive, yes: 15% is much easier than 38%. The problem here is that the AG could not let signatures collected under the higher threshold count toward the lower threshold because the underlying ballot title and text had also changed materially. Sponsors who wanted the benefit of the 15% threshold had to start over with new petitions.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Subject

Would signatures collected on a local-option-election petition under Ark. Code Ann. 3-8-602 as enacted by Act 1018 of 2013, count in testing the sufficiency of a petition filed under 3-8-602, as amend

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Would signatures collected on a local-option-election petition under Ark. Code Ann. 3-8-602 as enacted by Act 1018 of 2013, count in testing the sufficiency of a petition filed under 3-8-602, as amended by Act 564 of 2015? RESPONSE: "No," in my opinion. The petition procedure is governed by Ark. Code Ann. 3-8-201 et seq. (see 3-8-602 (b)(2)(A)), which requires in relevant part that the petition include a copy of the ballot title and text of the measure. Signatures collected under Act 1018 of 2013 were thus presumably collected on signature sheets that included a ballot title and text. This ballot title will not be the same as the ballot title at an election held under 3-8-602, as amended by Act 564 of 2015, nor will the text be the same because Act 564 amended 3-8-602 in several material respects. The Arkansas Supreme Court in a similar case reversed the Secretary of State's certification of a petition, where the ballot title for the measure had been altered after signatures were collected. In my opinion, the Court would similarly conclude that signatures collected on a petition under 3-8-602 prior to its amendment in 2015 cannot support holding an election under the statute as amended.

Original opinion text

Opinion No. 2015-133
January 12, 2016
The Honorable Bob Johnson
State Representative
511 North First, Suite 8
Jacksonville, AR 72076-4134
Dear Representative Johnson:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for an opinion on the following question:
Would signatures collected under Act 1018 of 2013, but not
presented to the Secretary of State, be submissible now and be
governed by Act 564 of 2015, which amended the petition
percentage requirements of the 2013 Act?
RESPONSE
Act 1018 of 2013 1 authorized local option elections (commonly referred to as
"wet-dry" elections) in so-called "defunct voting districts"2 upon petition of the
voters of the district. I take the above question to be asking whether signatures
that were collected on a local-option-election petition under Ark. Code Ann. § 3-8-
602 as enacted by Act 1018 of 2013, will count in testing the sufficiency of a
petition filed under Ark. Code Ann. § 3-8-602, as amended by Act 564of2015.3
1 Act 1018of2013, as amended by Act 564 of2015, is codified at Ark. Code Ann.§§ 3-8-601
and -602 (Supp. 2015).
2 A "defunct voting district" is a voting district that 1) existed when it was voted dry, 2) is no
longer recognized by the state or county, and 3) is currently located in a wet county. Ark. Code
Ann.§ 3-8-601(2).
3 Please note that these petitions are filed with the county clerk, rather than the Secretary of State.
Ark. Code Ann. § 3-8-602(b)(2)(C).
323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682~8084
ARKANSASAG.GOV The Honorable Bob Johnson
State Representative
Opinion No. 2015-133
Page 2
The answer to this question is "no," in my opinion.
DISCUSSION
Act 1018of2013 added a new subchapter 6 to Arkansas Code Title 3, Chapter 8,
to authorize a wet-dry election for an area within the boundaries of a defunct
voting district if 38% of the qualified electors of the district signed a petition
calling for the election.4 Under Ark. Code Ann. § 3-8-602(a)(l) and (2), as added
by Act 1018, the question at the election was whether to allow the "manufacture
and sale of alcoholic beverages" for "off-premises" and "on-premises"
. 5 consumpt10n.
Act 564 of 2015 amended Ark. Code Ann. § 3-8-602 in several respects. It
deleted the word "manufacture," so that the question at the election is whether to
allow the "sale of alcoholic beverages" within the defunct voting district. 6 It also
deleted the provision for "off-premises consumption" and limited on-premises
consumption to "the corporate limits of a city of the first class or a city of the
second class."7 And it changed the petition signature requirement from 38% to
15%.8
The question you have posed, in light of these amendments, is whether a petition
that was circulated for signatures under Ark. Code Ann. § 3-8-602 prior to the
enactment of Act 564 of 2015 will support holding an election under section 3-8-
4 Acts 2013, No. 1018, § 1. Act 1018 added new Ark. Code Ann. § 3-8-602(b)(2)(B), which
referred to "signatures required under §§ 3-8-204 - 3-8-205." At the time, section 3-8-205
contained the 3 8% requirement generally applicable to all local-option petitions.
5 Acts 2013, No. 1018, § 1.
6 Acts 2015, No. 564, § 1 (amending Ark. Code Ann.§ 3-8-602(a)).
7 Id.
8 Id. (amending Ark. Code Ann. § 3-8-602(b )(2)(B) to delete the reference to Ark. Code Ann. § 3-
8-205 (which contained the 38% requirement), and to require instead that "[s]ignatures shall be
obtained from fifteen percent (15%) of the qualified electors residing within the boundaries of a
defunct voting district.. .. "). The 38% requirement applicable to other local-option petitions is
now codified at Ark. Code Ann. § 3-8-803 (Supp. 2015), which was enacted under Act 1251 of
2015. See Acts 2015, No. 1251, § 5. The Honorable Bob Johnson
State Representative
Opinion No. 2015-133
Page 3
602, as amended by Act 564. The answer to this question is governed, in my
opinion, by Ark. Code Ann. § 3-8-602(b)(2)(A), which requires that "[t]he petition
procedure for a local option election for a defunct voting district shall be
conducted under § 3-8-201 et seq."9 (Emphasis added.) For our purposes, the
most significant requirement under the referenced "§ 3-8-201 et seq." is the
requirement that signature sheets on the petition must include a copy of the ballot
title and text of the measure. When Act 1018 of 2013 was enacted, 10 this
requirement arose under Ark. Code Ann. § 3-8-204(c) (Repl. 2008), which
incorporated by reference Ark. Code Ann. § 7-9-109. This latter provision of the
Election Code requires the canvasser's verification that "[a]t all times during the
circulation of this signature sheet, an exact cofiy of the popular name, ballot title,
and text was attached to the signature sheet."). 1
Signatures collected under Act 1018 of 2013 were thus presumably collected on
signature sheets that included a ballot title and text. And the ballot title presumably
conformed to Ark. Code Ann. § 3-8-602(b)(3)(B), as enacted by Act 1018 of
2013, which stated: "The ballot title shall be in substantially the following form:
'TO DETERMINE WHETHER OR NOT ALCOHOLIC BEVERAGES MAY BE
SOLD OR MANUFACTURED AS AUTHORIZED BY ARKANSAS CODE§ 3-
8-602 WITHIN ["X" defunct voting district]."
The Arkansas Supreme Court has previously addressed the Election Code's
requirement that the ballot title and text must be attached to the initiative petition.
9 This provision was enacted under Act 1018of2013. It was only slightly amended by Act 564
of 2015. It originally stated that the petition procedure "shall be conducted pursuant to § 3-8-201
et seq." Acts 2013, § 1018, § l (emphasis added).
10 Act 1018 contained an emergency clause and was effective April 9, 2013. Acts 2013, No.
1018, § 2
11 Ark. Code Ann.§ 7-9-109(a) (Supp. 2015). Section 3-8-204 was repealed by Act 1432 of2013.
But Act 1432 also amended Ark. Code Ann. § 3-8-205 to add a new subsection incorporating
Ark. Code Ann. § 7-9-101 et seq. for local-option petitions. See Acts 2013, No. 1432, § 2
(adding what is now codified as Ark. Code Ann. § 3-8-205(e) (stating in relevant part that "a
petition for a local option election shall be governed by § 7-9-101 et seq."). The canvasser
verification requirement was therefore in place in 2013 and applied to petitions circulated under
Ark. Code Ann.§ 3-8-602(b)(2)(A), as enacted by Act 1018of2013. Currently, the requirement
also arises under Ark. Code Ann.§ 3-8-205(a), which was amended by Act 1251 of2015 to refer
to Ark. Code Ann. § 3-8-801 et seq., which requires, under § 3-8-808(a), the canvassers'
verification that "[a]t all times during the circulation of this signature sheet, an exact copy of the
popular name, ballot title, and text was attached to the signature sheet."). The Honorable Bob Johnson
State Representative
Opinion No. 2015-133
Page 4
The case most on point with your question is Walmsley v. Martin, 12 involving a
challenge to the Secretary of State's certification of an initiative petition, where
the ballot title for the measure had been altered after signatures were collected.
The Court held that signatures collected under the revised ballot title could not
support certification.13 The Court explained that the Code requires the sponsor of
an initiative "to provide potential signatories an opportunity to review the exact
ballot title and complete measure."14 The Court observed that th pmpo of thi
requirement is "to inform voters of what they are i~njng before they ign it.' 15 It
demanded "strict compliance" with the requirement 6 and it reiterated the rul that
"the potential signatories to initiated amendments, referenda, and acts must receive
the exact ballot title that will be certified and printed on the general election
ballot."17 The Court also noted that had the text of the measure materially changed
from the one circulated for signatures, such a change might have been an
additional basis for finding the petition insufficient. 18
I believe this case paves the way to the resolution of your question regarding
signatures collected under Act 1018 of 2013. The ballot title on those signature
sheets will not be the same as the ballot title at an election held under Ark. Code
Ann. § 3-8-602, as amended by Act 564 of 2015. The text will also be materially
different. As explained above, Act 564 amended section 3-8-602 in several
material respects. The question at an election held under section 3-8-602, as
amended, is whether to allow the sale of alcoholic beverages for on-premises
consumption within the defunct voting district. The voters will not be presented
with the question whether alcohol may be "manufactured." Nor will they be
voting on whether to allow off-premises consumption. The ballot title at the
election will state substantially as follows: "TO DETERMINE WHETHER OR
12 2012 Ark. 370, 423 S.W.3d 587.
13 Id. at 10, 423 S.W.3d at 592.
14 Id. at 8, 423 S.W.3d at 591.
15 Id. (citation omitted).
16 Id. (citations omitted).
17 Id. at 11, 423 S.W.3d at 592.
18 Id. at 10, 423 S.W.3d at 592 (discussing Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512
( 1992)). The Honorable Bob Johnson
State Representative
Opinion No. 2015-133
Page 5
NOT ALCOHOLIC BEVERAGES MAY BE SOLD AS AUTHORIZED BY
ARKANSAS CODE§ 3-8-602 WITHIN ["X" defunct voting district]."19
Consequently, as was the case in Walmsley, the signatories to the petition will
have reviewed a different ballot title than the one to be printed on the election
ballot. Moreover, the text of the proposal will be materially different from the one
circulated with the signature sheets. If faced with the question, therefore, I believe
the Court would have little difficulty concluding that signatures collected on a
petition under Ark. Code Ann. § 3-8-602 prior to its amendment in 2015 cannot
support holding an election under the statute as amended.
Sincerely,
~~~
LESLI~R~T~
Attorney General
19 Ark. Code Ann. § 3-8-602(b)(3)(B)(Supp. 2015).